United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTIONS
FOR RECONSIDERATION AND GRANTING PETITIONER'S MOTIONS TO
APPEAL WITHOUT REPAYMENT OF FEES
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Haider Salah Abdulrazzak, (Abdulrazzak) filed petitions under
28 U.S.C. § 2254 in two separate cases. 19-CV-4025, Doc.
1; 19-CV-4075, Doc. 1. This Court granted the
respondents' motions to dismiss and entered judgments in
favor of the respondents. 19-CV-4025, Docs. 17 and 18;
19-CV-4075, Docs. 16 and 17. Abdulrazzak now has filed
motions for reconsideration, notices of appeal, and motions
to appeal without repayment of fees in both cases.
19-CV-4025, Docs. 19, 20, 21; 19-CV-4075, Docs. 18, 19, 20.
Motions for Reconsideratio 
district court's decision on a motion for reconsideration
rests within its discretion. Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 413 (8th Cir. 1988). "Motions
for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
evidence." Id. at 414. The Federal Rules
provide the following regarding grounds for relief from an
On motion and just terms, the court may relieve a party . . .
from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). In his motions, Abdulrazzak asks for
reconsideration because this Court addressed his two separate
habeas claims in one opinion and order. 19-CV-4025, Doc. 19
at 1; 19-CV-4075, Doc. 18 at 1. Abdulrazzak makes no argument
that fits any of the grounds for relief from an order under
Fed.R.Civ.P. 60(b). Id. Rather, Abdulrazzak claims
that the "two cases required tow [sic] different
standard[s] of review and could prejudice Petitioner."
Id. at 2. This Court analyzed Abdulrazzak's
habeas petitions in 19-CV-04025 and 19-CV-04075 separately in
its opinion and order. 19-CV-4025, Doc. 17; 19-CV-4075, Doc.
Court concluded that Abdulrazzak's claims in 19-CV-4075
were not exhausted and that his claims in 19-CV-4025 failed
on the merits. This Court chose to address the motions to
dismiss in a single opinion and order to have one
comprehensive decision. Of course, the facts in
Abdulrazzak's cases overlapped, as did the legal
standards. For instance, exhaustion in state court is
required for all habeas petitions. See 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999) (State court must be given the first
opportunity to hear a claim.). Abdulrazzak has not shown
sufficient grounds for relief regarding this Court's
opinion and order addressing his two cases in one decision.
Abdulrazzak argues that he did not obtain the full records or
transcripts. 19-CV-4025, Doc. 19 at 2-3; 19-CV-4075, Doc. 19
at 2-3. He cites 28 U.S.C. §§ 2247 and 2249
claiming that he did not receive the habeas transcripts and
thus "could not submit a brief on the contrary to
clearly establish federal law[.]" Id. Section
2247 makes "transcripts of proceedings upon arraignment,
plea and sentence and a transcript of the oral testimony
introduced on any previous application by or in behalf of the
same petitioner" admissible as evidence. Further, 28
U.S.C. § 2249 requires that certified copies of the
indictment, plea and judgment be filed with the court. These
transcripts and copies were provided to Abdulrazzak. See
19-CV-4025, Docs. 1 and 9; 19-CV-4075, Docs. 1 and 8.
Additionally, on May 20, 2019, this Court received the state
trial court records from the Minnehaha County Clerk of
Courts. This Court also received transcripts for the bond
hearing, pretrial conference, jury trial, and sentencing on
May 23, 2019. These transcripts were used and cited to in
this Court's opinion and order addressing the merits of
Abdulrazzak's claims in 19-CV-4025 and in discussing the
lack of exhaustion of claims in 19-CV-4075. 19-CV-4025, Doc.
17; 19-CV-4075, Doc. 18. Abdulrazzak has not shown sufficient
grounds for relief on this matter.
final argument in his motion filed in 19-CV-4025 asserts that
this Court ruled on his claims without transcripts and did
not read his petitions. 19-CV-4025, Doc. 19 at 5.
Specifically, he alludes to over 90 grounds for relief
requested in exhibits to his petition in his first filed
case. See 19-CV-4025, Doc. 1. This Court did not
address these claims because Abdulrazzak had only exhausted
the first four claims in his state habeas petition.
19-CV-4025, Doc. 17 at 10. State exhaustion is required,
thus, only the four exhausted claims were analyzed.
O' Sullivan, 526 U.S. at 842; 19-CV-4025, Doc.
17. Abdulrazzak's motions for reconsideration are
unsupported by the record and he has not established grounds
for relief under Fed.R.Civ.P. 60(b). Thus, Abdulrazzak's
motions for reconsideration are denied.
Motions to Appeal without Prepayment of Fees
has filed notices of appeal and motions to appeal without
prepayment of fees, with his prisoner trust account.
19-CV-4025, Docs. 20, 21 and 22; 19-CV-4075, Docs. 19, 20,
and 21. The Eighth Circuit historically has looked to
district courts to rule on in forma pauperis motions for
appeal and has held that the filing-fee provisions of the
PLRA do not apply to habeas corpus actions. Malave v.
Hedrick, 271 F.3d 1139, 1140 (8th Cir. 2001). To
determine whether a habeas petitioner qualifies for in forma
pauperis status, the court need only assess (1) whether the
petitioner can afford to pay the full filing fee, and (2)
whether the petitioner's appeal is taken in "good
faith." 28 U.S.C. § 1915(a)(1), (3).
prisoner trust account report indicates that he has average
monthly deposits to his prisoner trust account of $77.42 and
an average monthly balance of $59.13. 19-CV-4025, Docket 22.
Abdulrazzak's appeals, though arguably misguided, appear
to be taken in good faith. Abdulrazzak has insufficient funds
to pay the $505.00 appellate filing fees, so his motions for
leave to proceed in forma pauperis on appeal are granted.